FEDERAL UPDATES

IRS Mileage Rate:  The IRS announced an increase in the deductible mileage reimbursement rate for 2024 to 67 cents per mile, up from 65.5 cents.

Exempt Salary Thresholds.  The Biden administration just released its Fall Unified Agenda for Regulatory and Deregulatory Actions, listing an estimated date of April 2024 for adopting a final DOL rule increasing the federal exempt salary threshold.  The DOL published a proposed rule on September 8, 2023, which included a substantial increase in the federal exempt salary threshold for executive, administrative, professional, outside sales, and computer employees to $1,059 per week ($55,068 annually) and an increase in the highly compensated employee salary threshold to $143,988.  It received over 33,000 comments on the proposed rule, so additional changes may be coming.  Most experts believe the April 2024 deadline is overly ambitious for such a substantial change, recognize that the DOL regularly extends its deadlines, and expect legal challenges that could delay implementation.  On the other hand, the Biden administration may push it through on time for political reasons and to ensure it is final before the next presidential election.  In any event, it would not go into effect until 60 days after the final rule is published, so would likely take effect in June 2024 at the earliest.

Child Labor.  In a new Field Assistance Bulletin, the DOL warned that it intends to crack down on child labor violations to ensure that it is “appropriately and consistently utilizing its full authority in every child labor enforcement action.”  Going forward DOL intends to seek the maximum $15,138 penalty in cases where there is no injury/only a minor injury, and will now assess penalties for each violation rather than for each child.  The FAB also assigned a percentage by which the maximum possible penalty may be increased or decreased based on various factors such as repeat violations, willfulness, and how many minors are involved.  Fines will add up very quickly, especially when there are multiple violations and multiple minor employees, and many states also have separate rules and enforcement mechanisms.  Employers that hire minors are advised to carefully review both federal and state requirements and confirm that they have procedures in place to ensure compliance.

OSHA Reporting:  Companies required to file reports with OSHA have until March 2, 2024, to submit their 2023 data.  There are some changes this year, including (i) establishments must include their legal company name when making electronic submissions, and (ii) establishments with 100+ employees at any time in 2023 in certain designated high-risk industries must electronically submit information from their OSHA Forms 300 and 301 (in addition to their 300A report).  The list of high-risk industries is contained in a new Appendix B to Subpart E of the recordkeeping standard, available in the Injury Tracking Application under “Who is covered by this requirement”).  OSHA estimates this will only affect about 52,092 establishments.

OSHA also intends to make most of the additional Form 300 and Form 301 data submitted available to the public on its website, although it claims that it will take multiple steps to protect the identity of injured or ill workers, such as:

• It will not collect worker names and addresses;
• It will convert birth dates to age and discard birth dates;
• It will remind employers not to submit information that could directly identify workers, such as names, addresses, telephone numbers, etc.;
• It will withhold from publication the information on age, gender, date hired, and whether the worker was treated in an emergency room and hospitalized overnight as an in-patient;
• It will use automated information technology to detect and remove any remaining information that could directly identify workers.

For affected employers, carefully reviewing and making any necessary corrections to their Form 301 incident reports is advised well before the reporting deadline as the content may be published online, and any improper documentation will invite fines and additional enforcement actions.  This type of review is also recommended for all employers subject to OSHA to avoid fines and penalties during any OSHO inspection.

STATE/LOCAL UPDATES

California – Wage Theft Notice Update (eff 1/1/24).  The California Wage Theft Protection Act requires all employers to provide each non-exempt employee at the time of hire, or within 7 days of any changes in the disclosures, with a written notice containing specified information.  Beginning in 2024 the notice must include the amended paid sick leave allocations and a disclosure of any federal or state emergency or disaster declarations applicable to the county where the employee is to be employed that was issued within 30 days before the employee’s first day of employment and that may affect their health and safety during their employment.  Employers should update their new hire forms, and be prepared to send out the updated notices to existing employees on January 1.  There are some concerns that new notices will now be required within 7 days when a federal or state emergency is declared, requiring employers to monitor state and federal declarations continuously.  The hope is that further guidance is forthcoming.

The English language version of the notice has just been posted on the Labor Commissioner’s website (Wage Theft Protection Act (ca.gov)), but note that versions in other languages have not yet been updated.

Illinois (Chicago)

Paid Leave Delayed.  In what is very welcome news for Chicago employers, the City Council voted to delay the changes to the new Chicago Paid Leave and Paid Sick and Safe Leave Ordinance (five days of each) that were originally set to take effect January 1.  They will now be effective July 1, 2024.  This new ordinance will require significant customization, especially for employers with multi-state operations, so employers will want to prepare well in advance of the new July 1 deadline.

Employee Notices.  In addition to delaying the new paid leave requirements, the amendments to the paid leave ordinance also amended the city code to require that (i) employers provide their employment policies to any workers whose regular work duties take place within the geographical boundaries of Chicago, in the primary language of each worker and (ii) employers provide workers with a 14-day notice of any changes to employment policies.

Massachusetts – PFML.  Massachusetts requires employers to post a PFML notice and notify employees annually of any updates to contribution rates and weekly benefit amounts. The 2024 poster and updated template notice forms are now available on DFML’s website and have been updated to include recent amendments to the PFML Act.  For existing employees, the notice should be distributed but does not have to be acknowledged.  For new hires, employers are required to obtain a signed acknowledgment form.

Nevada – Accommodations for Sexual Assault Victims (eff 1/1/24)  Current state law grants leave and reasonable accommodation to domestic violence victims and their family members.  AB 163 expands these protections to victims of sexual assault and their family/household members. To qualify, an employee needs to have been employed for 90 days.  The law also prohibits the state from denying unemployment benefits in specific instances involving sexual assault victims.

New York

NYS – Freelance Isn’t Free Act (eff. 5/20/24):  Beginning in May, anyone hiring freelance workers /independent contractors in NYS will have new obligations modeled on the similar NYC act.  Highlights include:

• A “freelance worker” is defined as any person, or organization composed of no more than one natural person, hired to provide services for which they will be paid $800 or more. Certain sales representatives, practicing attorneys, licensed medical professionals, and construction contractors are excluded.
• There must be a written contract if they will be paid $800 or more either per job or overall within 120 days. NYDOL will post a compliant model contract on its website. The contract must include:
• Names and mailing addresses of each party
• An itemized accounting of work to be performed
• Rate of pay/contract amount
• Pay within 30 days, unless the parties agree to a different timeline in the contract
• The date an invoice must be provided to allow the hiring party to meet the payment deadline
• The hiring party must keep the contract for at least 6 years, or risk a presumption that the worker’s declared terms were included in the contract.
• Aggrieved workers can file a claim with the NYDOL and have a private right of action that can result in double damages, injunctive relief, attorneys’ fees, costs, and other “appropriate” remedies. A pattern of abuse can result in fines of up to $25,000.  NYS employers should review any existing contracts to confirm that they include all required terms, and flag any work that could result in a payment of $800 or more to require a compliant written contract.

NYS – Discrimination:  The statute of limitations for unlawful discrimination increases from one year to three years for all claims arising on or after February 15, 2024.

NYC – Workers Bill of Rights (eff 7/1/24).  Businesses with employees in New York City will soon be required to post and distribute a “Workers’ Bill of Rights” notice that is expected to be available on the city website by March 1, 2024.  Employers will be required to distribute the notice to all employees, conspicuously post the information, post it online (if they regularly communicate with employees online, such as an employee intranet), and provide the notice to all new hires on or before their first day of work. Several agencies are tasked with creating the notice, which is expected to include information about federal, state, and local employment rights, which rights apply to workers regardless of immigration status, and information about the right to organize a union.  The notice must be provided in English and any other language that is the primary language spoken by at least five percent of employees.

Washington

UI Tax Filing.  Employers who file an Unemployment Insurance tax report will be able to include either job titles or six-digit SOC codes for each employee beginning with Q4 2023 reports.  ESD notes that SOC codes are easier to use, but that job titles may make more sense when a job is “unique or new” or isn’t included in the list of SOC codes.  It also notified employers that it would begin assessing penalties for “knowingly” failing to provide the job title or the SOC code.

Minimum Wage/Exempt Salary Thresholds.  Washington employers should be prepared for increases in both the minimum wage and the exempt salary threshold beginning January 1.  The exempt salary threshold will increase to $67,724.80 for all employers in 2024, with additional steep increases scheduled for the next several years.  The statewide minimum wage will increase to $16.28, and Seattle and Tukwila are even higher.  Seattle will increase to $19.97 for 500+ employers, and $17.25-$19.97 (depending on benefits offered) for employers with fewer than 500 employees.  Tukwila will increase to $20.29-$18.29 depending on employer size.  The threshold for allowing employee noncompete agreements will increase to $120,559.99.

If you’d like to speak to an Asure HR expert about your business, connect with us.

Asure Software provides this information for general information purposes only.  We are not attorneys, and the information in this update should not be relied upon or regarded as legal advice.  This information may not be accurate or complete as it relates to a particular company or situation, and does not reflect all developments or laws in all jurisdictions.